Citation Nr: 9820004
Decision Date: 06/30/98 Archive Date: 07/06/98
DOCKET NO. 96-34 288 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Whether appellant’s conduct raised an inference or
presumption that she had remarried thereby barring her
continued receipt of VA dependency and indemnity compensation
as the surviving spouse of the veteran.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and her daughter
ATTORNEY FOR THE BOARD
K. Gallagher, Associate Counsel
INTRODUCTION
Evidence in the claims file verifies that the veteran served
on active duty from February 1943 to January 1952 and from
January 1958 to January 1967. The total number of years of
active service indicates an additional period of active
service but active service during the period from January
1952 to January 1958 is unverified. The veteran died in
November 1977.
This matter comes before the Board of Veterans’ Appeals
(Board) from a September 1995 administrative decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia, which determined that appellant’s conduct
in signing a certain form on March 14, 1995, had raised an
inference or presumption that she had remarried thereby
barring her continued receipt of VA dependency and indemnity
compensation (DIC) as the surviving spouse of the veteran.
A hearing was held on September 18, 1997, in Atlanta,
Georgia, before Bettina S. Callaway, a member of the Board
who was designated by the Chairman to conduct the hearing
pursuant to 38 U.S.C.A. § 7102(b) (West 1991) and who is
rendering the determination in this case.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO committed error in
terminating her VA DIC benefits by determining that her
conduct in signing a certain form on March 14, 1995, had
raised an inference or presumption that she had remarried.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter and for the following reasons and bases, it is
the decision of the Board that appellant’s conduct had raised
an inference or presumption that she had remarried thereby
barring her continued receipt of VA dependency and indemnity
compensation as the surviving spouse of the veteran.
FINDINGS OF FACT
1. The appellant was in receipt of VA DIC benefits since the
late 1970s when her husband, a veteran (the “first”
veteran), died.
2. After the “first” veteran’s death, the appellant lived
with another person of the opposite sex who was also a
veteran (the “second” veteran).
3. On March 14, 1995, the appellant signed a VA Form
29-4125, Claim for One Sum Payment - Government Life
Insurance, which named her as the beneficiary of the
“second” veteran’s government life insurance policy and
which designated her relationship to the insured as “common
law wife”.
CONCLUSION OF LAW
By signing the VA Form 29-4125 on March 14, 1995, the
appellant engaged in conduct which raised an inference or
presumption that she had remarried and in this manner she
held herself out openly to the public to be the spouse of the
“second” veteran thereby barring her continued receipt of
VA dependency and indemnity compensation as the surviving
spouse of the “first” veteran under the law.
38 U.S.C.A. § 103 (West 1991 & Supp. 1998); 38 C.F.R.
§ 3.50(b)(2), 3.55(a)(4) (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background.
The veteran died in November 1977, and the RO, in a January
1978 rating decision, granted service connection for the
veteran’s cause of death, thereby entitling the appellant,
widow of the veteran, to VA DIC benefits as the surviving
spouse of the veteran. The Board notes that a March 1995 VA
Form 119, Report of Contact, which is in the claims file
provides in pertinent part,
T[elephone call] on 3-13-95 requesting
information about how to file [National
Service Life Insurance] Insurance.
T[elephone call] from daughter of [the
appellant]. Daughter states father died.
Mother needs to file insurance
claim. . . . Daughter said Mother did
not qualify for Retirement/CAO services
since marriage was only common-law. I
explained that the Mother may still
qualify for VA Benefits as the common-law
wife. Daughter states Mother was not
interested in apply[ing] because she
already receives VA DIC as the widow of
another veteran.
O[ffice visit] on 3-14-95 [the appellant]
states she receives DIC as the widow of
[the veteran]. Widow produced form 29-
336 dated 8-14-89 completed by [another
veteran] reporting to [National Service
Life Insurance] that [the appellant] was
his common-law wife.
Also in the claims file is a VA Form 29-4125, Claim for One
Sum Payment - Government Life Insurance, signed by the
appellant on March 14, 1995. The form names the appellant as
beneficiary of another veteran’s government life insurance
policy and, under a block on the form for designating the
“relationship to insured”, the words “common law wife”
were written in.
In August 1995, the VA conducted a field examination to
investigate the relationship that existed between appellant
and the second veteran. In the field examination report, the
field examiner’s recommendations were as follows:
Evidence found indicates that the widow
did not hold herself out to be the
common-law wife of [the second veteran]
until he died. Records clearly show that
she separated herself in all financial
transactions, public documents and other
issues from [the second veteran]. It
does appear that the deceased, [the
second veteran], did represent her as his
wife; however, there is no evidence to
support that she represented herself as
his wife while he was living. However,
the evidence does substantiate that at
the time of his death she did hold
herself out to be his widow in fact
signing documents as the common-law
wife. . . .
In the September 1995 administrative decision, the RO noted
that there was no evidence of record to indicate that the
widow held herself out to be the wife of another person prior
to the death of the second veteran but concluded that the VA
Form 29-4125, Claim for One Sum Payment - Government Life
Insurance, signed by the appellant on March 14, 1995,
indicated an inference of remarriage as of that date.
At the hearing conducted in September 1997, the appellant
testified that she and the second veteran were friends and
that she never held herself out to be his wife. She also
testified that the VA Form 29-4125 had been completed for her
by another individual who was helping her with paperwork and
that this individual instructed her to sign the form and that
she signed it. The appellant’s daughter testified that, in
the telephone conversation with the VA employee in March
1995, she did not refer to the second veteran as her father
but rather she was referring to the first veteran, who was
her father and who had died nearly twenty years earlier, when
she stated that her mother was receiving VA benefits from her
father.
Analysis.
The statutes and regulations applying to a surviving spouse
who remarries and then later reapplies for DIC after the
remarriage ends either by death or divorce have been modified
several times in recent years and were outlined in detail by
the United States Court of Veterans Appeals (Court) in Owings
v. Brown, 8 Vet. App. 17, 19-20 (1995). A statute regarding
remarriage of the widow of a veteran in effect before
November 1, 1990, provided,
The remarriage of the widow of a veteran
shall not bar the furnishing of benefits
to her as the widow of the veteran if the
remarriage has been terminated by death
or has been dissolved by a court with
basic authority to render divorce decrees
unless the [Secretary] determines that
the divorce was secured through fraud by
the widow or collusion.
38 U.S.C. § 103(d)(2).
The statute was amended in 1990 by Omnibus Budget
Reconciliation Act of 1990 (OBRA), Pub. L. No. 101-508,
§ 8004, 104 Stat. 1388-343 (Nov. 5, 1990) (Ineligibility of
Remarried Surviving Spouses or Married Children for
Reinstatement of Benefits Eligibility Upon Becoming Single)
and the amendment consisted of striking out paragraph (2) of
38 U.S.C. § 103(d). With regard to the effective date for
the amendment, the 1990 law provided that “[t]he
amendments . . . shall apply with respect to claims filed
after October 31, 1990, and shall not operate to reduce or
terminate benefits to any individual whose benefits were
predicated on section 103(d)(2) . . . before the effective
date of those amendments.” 38 U.S.C. § 103 note.
The statute was amended in 1991 by the Veterans’ Benefits
Programs Improvement Act of 1991, Pub. L. No. 102-86, § 502,
105 Stat. 414, 424 (Aug. 14, 1991) (Savings Provision for
Elimination of Benefits for Certain Remarried Spouses) [1991
Savings Provision] which provided,
The amendments made by section 8004 of
[OBRA] shall not apply with respect to
any individual who on October 31, 1990,
was a surviving spouse or child within
the meaning of title 38, United States
Code, unless after that date that
individual (1) marries, or (2) in the
case of a surviving spouse, begins to
live with another person while holding
himself or herself out openly to the
public as that person’s spouse.
38 U.S.C. § 103 note.
The law was amended again in 1992 by the Veteran’s Benefits
Act of 1992, Pub. L. No. 102-568, § 103, 106 Stat. 4320, 4322
(Oct. 29, 1992) (Exception to Operation of OBRA Provision)
[1992 Exception] which provided,
(a) Exception.--The amendments made by
section 8004 of the [OBRA] shall not
apply to any case in which a legal
proceeding to terminate an existing
marital relationship was commenced before
November 1, 1990, by an individual
described in subsection (b) if that
proceeding directly resulted in the
termination of such marriage.
(b) Covered Individuals.--An individual
referred to in subsection (a) is an
individual who, but for the marital
relationship referred to in subsection
(a), would be considered to be the
surviving spouse of a veteran.
38 U.S.C. § 103 note.
The term “surviving spouse” is defined in 38 U.S.C.
§ 101(3), and this definition was not modified by the 1990
Amendment, the 1991 Savings Provision, or the 1992 Exception:
The term “surviving spouse” means . . .
a person of the opposite sex who was the
spouse of a veteran at the time of the
veteran’s death, and who lived with the
veteran continuously from the date of
marriage to the date of the veteran’s
death . . . and who has not remarried . .
. .
38 U.S.C. § 101(3).
Under the authority of 38 U.S.C. § 103, section 3.55 of VA
regulations provides in pertinent part,
(a) Surviving spouse. . . .
(4) On or after January 1, 1971, the
fact that benefits to a surviving spouse
may previously have been barred because
his or her conduct . . . had raised an
inference or presumption that he or she
had remarried . . . shall not bar the
furnishing of benefits to such a
surviving spouse after he or she
terminates the conduct or relationship,
if the relationship terminated prior to
November 1, 1990.
38 C.F.R. § 3.55(a)(4) (1997).
In this case, it is undisputed that, since the death of the
“first” veteran, on whose service and cause of death her VA
DIC benefits were predicated, the appellant lived with
another person of the opposite sex, the “second” veteran.
The remaining issue is whether she also held herself “out
openly to the public to be the spouse of such other person.”
38 C.F.R. § 3.50(b)(2) (1997).
The conduct which raised an inference or presumption of
remarriage was the appellant’s signing of the VA Form 29-4125
in March 1995 which defined her relationship to the second
veteran as “common-law wife”. Even though there is no
evidence that she ever engaged in such conduct again, because
the conduct happened after November 1, 1990, it is also true
that the conduct terminated after November 1, 1990.
Therefore, the Board concludes that, in signing this form,
the appellant had raised an inference or presumption that she
had remarried and in this manner held herself out openly to
the public to be the spouse of the second veteran thereby
barring her continued receipt of VA dependency and indemnity
compensation as the surviving spouse of the first veteran.
38 C.F.R. § 3.50(b)(2), 3.55(a)(4) (1997).
In so concluding, the Board notes that a VA regulation
defines “marriage” as “a marriage valid under the law of
the place where the parties resided at the time of marriage
or the law of the place where the parties resided when the
right to benefits accrued.” 38 C.F.R. § 3.1(j) (1997). The
appellant, who resided with the second veteran in Georgia,
has contended that Georgia law recently changed and no longer
recognizes common-law marriages, and she argues therefore
that the VA is barred by section 3.1(j) from recognizing her
relationship with the second veteran as a marriage. However,
the definition of “marriage” in the regulation is for the
purposes of determining whether a marriage to a veteran is
valid for the purposes of obtaining VA benefits (“when the
right to benefits accrued”) predicated on that marriage and
is not relevant to a question of whether a surviving spouse,
who was already in receipt of VA benefits based on a marriage
to a veteran, held herself out to the public to be the spouse
of a person other than that veteran. 38 U.S.C.A. § 103(c)
(West 1991); 38 C.F.R. § 3.1(j) (1997). Thus, the Board
concludes that, where there is conduct raising an inference
of a remarriage after October 31, 1990, VA must deny payment
of surviving spouse benefits under section 3.55(a)(4) even in
states where the surviving spouse is living as the spouse of
another person but is not legally married because the state
does not recognize common law marriages.
The Board is sympathetic to the appellant’s situation and
unfortunate loss of benefits. However, the Board must apply
the law as it exists. See Owings v. Brown, 8 Vet. App. 17
(1995) (“This Court must interpret the law as it exists, and
cannot “extend . . . benefits out of sympathy for a
particular [claimant].”); Kelly v. Derwinski, 3 Vet. App.
171, 172 (1992).
ORDER
Reinstatement of appellant’s VA dependency and indemnity
compensation is denied.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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